Dismissed

V.Murugesan v. C.Senthilkumar

Madras HC26 Jul 2021AS/1017/2012

Case brief

AI extract

What is this about?

The single-judge High Court of Madras dismissed an appeal suit filed against a money recovery decree. The court rejected forensic expert opinions on promissory note copies as insufficient to rebut legal presumptions regarding execution and consideration, noting the expert did not verify signatures.

What did the court decide?

Appeal suit dismissed; miscellaneous petition MP.No.1 of 2013 dismissed.

V.Murugesan Vs C.Senthilkumar — Contract and Commercial Disputes | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 07.07.2021

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Pronounced on : 26.07.2021

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CORAM:

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THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

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AS.No.1017 of 2012 and MP.Nos.1 of 2012 & 1 of 2013

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V.Murugesan ... Appellant/Defendant

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Vs.

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C.Senthilkumar ... Respondent/Plaintiff

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PRAYER: Appeal Suit is filed under Order XLI Rule 1 of CPC against the judgment and decree dated 27.06.2012 passed by the I Additional District Court, Erode in OS.No.251 of 2008.

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For Respondent : Mr.V.P.Sengottuvel

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JUDGMENT

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The Appeal suit is filed against the judgment and decree dated 27.06.2012 passed by the I Additional District Court, Erode in OS.No.251 of 2008.

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For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

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The suit is filed for recovery of money on the pronotes. The case of the plaintiff is that on 04.12.2005, the defendant had borrowed a sum of Rs.10,00,000/- for his urgent business purpose. On the date of borrowal of the loan amount, he executed four promissory notes dated 04.12.2005 for a sum of Rs.2,50,000/- each. Accordingly, the defendant promised to repay the principal amount with interest at the rate of 12% per annum. In spite of repeated demands made by the plaintiff, the defendant evaded payment either principal or interest. Therefore, the plaintiff caused legal notice on 08.05.2008. The defendant refused to receive the notice and returned the same. Hence, the suit.

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Resisting the same, the defendant filed written statement and denied the very borrowal of loan of Rs.10,00,000/-

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from the plaintiff. He further stated that absolutely he had no need to borrow any loan from the plaintiff. On the alleged date of borrowal, no consideration was passed to the defendant to execute the alleged pronotes. The signatures found in the promissory notes are fabricated by the plaintiff with the help of his brother in law and filed false and frivolous suit. In fact, the plaintiff is the stranger to the defendant and he was never known to the plaintiff.

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On hearing the rival pleadings, the learned trial Judge

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framed the following issues for determination of the suit :- (i)Whether the plaintiff is entitled to get the amount as claimed in the plaint?

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(ii) Whether the suit promissory notes are executed by the defendant as claimed in the plaint?

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(iii)To what relief if any, the plaintiff is entitled to ?

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In support of the plaintiff's case, P.W.1 and P.W.2 were examined and five documents were marked as Ex.A.1 to Ex.A.5. On the side of the defendant, D.W.1 was examined and no exhibits were marked. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court decreed the suit as prayed for. Aggrieved by the same, the defendant has preferred the present appeal suit.

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While pending the appeal suit, the defendant filed petition in MP.No.1 of 2013 to receive the forensic experts report dated 24.01.2013 as an exhibit on the side of the defendant side.

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Resisting the same, the respondent also filed his counter stating that the defendant failed to satisfy the requirements mandated under Order 41 Rule 27 (aa) CPC. In the appellate stage, receiving of the additional document is discretion of the court. The defendant failed to take any steps to refer his signatures in the suit pronotes for expert opinion before the trial court, since the defendant specifically denied the very execution of the suit pronotes and denied the signatures found in the suit pronotes. When it being so, the defendant ought to have filed necessary petition before the trial court to send the same for handwriting experts opinion.

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The learned counsel for the appellant submitted that the alleged original pronotes were lost in the court below and as such the respondent was permitted to mark xerox copy of the pronotes dated 04.12.2005. He further submitted that one of the attestor was examined by PW1 and he categorically admitted that

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he was not present when the defendant went to the house of the plaintiff for borrowal of such huge amount. When PW2 who is the attestor and scribe of the alleged pronote and when the defendant rebutted the execution of the very pronote itself, the presumption under Section 118 of the Negotiable Instruments Act lifted and burden of proof shifted to the shoulder of the plaintiff to prove his case. According to the deposition of PW2, no consideration was passed to the defendant and as such the defendant is not liable to pay any amount as claimed by the plaintiff.

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9.1 He further submitted that due to unavoidable circumstances, he could not able to file a petition for sending the alleged pronotes for handwriting experts opinion to the forensic laboratory. Therefore, while pending appeal, the defendant sent for exhibits A1 and A4 for handwriting experts opinion. By the report dated 24.01.2013 by the expert, who is fully qualified with 25 years of service in the Forensic Science Department, Government of Tamil Nadu, opined that the Ex.A1 and A3 are one and the same and Ex.A2 and A4 are one and the same, thereby forensic expert confirmed the stand taken by the defendant that the alleged pronotes are not one and the same. Therefore, the expert opinion dated 24.01.2013 is a vital piece of evidence in the present appeal and it is liable to be marked as exhibit on the side of the defendant. Therefore, it is categorically proved that he never executed any pronote and he never borrowed any sum as alleged by the plaintiff. In support of his contention, he relied upon the following judgments:

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(i) Ram Jethmalanai and others Vs. Union of India

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and others reported in (2011) 8 SCC 1

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(ii) Ayyakannu Gounder Vs. Virudhambal Ammal reported in (2005) 1 MLJ 14

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(iii) A.Krishna Reddy Vs. P.V.R.S.Mani Kumar rendered in Crl.A.No.294 of 2000 by this Court

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(iv) Bharat Barrel & Drum Manufacturing Company

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Vs. Amin Chand Payrelal reported in

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(1999) 3 SCC 35

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(v) P.Ramasamy Vs. K.Chinnammal rendered in SA.No.154 of 2002 by this Court

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Per contra, the learned counsel for the respondent submitted that the appellant borrowed a sum of Rs.10,00,000/- on 04.12.2005 and executed four pronotes in favour of the respondent promising to repay the said amount with interest at the rate of 12% per annum. In spite of repeated request, the appellant failed to repay the loan amount borrowed by him. Therefore, the respondent caused notice on 08.05.2008. It was returned as not claimed by the appellant. Though the appellant denied the very execution of the pronotes and borrowal of Rs.10,00,000/-, the appellant failed to adduce any piece of evidence to disprove the case of the respondent herein. The

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appellant also failed to send for pronotes which were executed by him for handwriting expert opinion from the Forensic Science Department.

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10.1 He further submitted that the original pronotes were annexed along with the plaint and the same were marked as Ex.A1 to A4. After receipt of suit summons, the appellant failed to appear before the trial court and as such he was set exparte and exparte evidence was recorded, in which the original suit pronotes were marked. Ex.A5 is pre-suit notice and returned postal cover. On the basis of the exparte evidence, the trial court decreed the suit by the judgment and decree dated 30.06.2009. Thereafter, the appellant filed IA.No.300 of 2011 to set aside the exparte decree and the same was allowed on 09.08.2011. After exparte judgment and decree, the court bundle could not be traced out and as such he was permitted to reconstruct the bundle. Accordingly, the respondent reconstructed the bundle and filed xerox copy of the pronotes which were marked as Ex.A1 to A4. Even thereafter, the appellant did not take any steps to send for the pronotes for handwriting experts opinion.

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10.2 He further submitted that the respondent was examined as PW1 and he categorically deposed that the appellant borrowed a sum of Rs.10,00,000/-. At the time of borrowal of loan, PW2 and one, Murugan were present at the residence of the respondent herein. PW2 corroborated the evidence of PW1. While he was cross examined, he was put to suggestion that no such borrowal was happened and the respondent was not affordable to lend such huge money, for which PW2 denied the suggestion. Therefore, it has to be read in whole and he never deposed that there was no borrowal and no amount was given to the appellant. Therefore, the appellant failed to rebut the evidence of PW1 and PW2. Therefore, the execution of the pronotes itself presumed under Section 118 of Negotiable Instruments Act that the appellant borrowed a sum of Rs.10,00,000/- from the respondent. He further submitted that in the appeal, the appellant filed petition to receive handwriting experts opinion as exhibit under Order 41 Rule 27 of CPC. The appellant failed to satisfy the mandatory requirements as contemplated under Order 41 Rule 27 (a) (a) of CPC and as such it is liable to be dismissed. Furthermore, it is discretion of the appellate court and while exercising power under Order 41 Rule 27 of CPC, it should be exercised judiciously and with circumspect only where the prerequisite conditions provided under Order 41 Rule 27 exists. The appellant was set exparte before the trial court and after period of two years, he filed petition to set aside the exparte decree in IA.No.300 of 2011.

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10.3 He further submitted that in the written statement, the

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appellant specifically averred that he never executed any pronotes and never borrowed any amount from the respondent. When it being so, the appellant ought to have taken steps to rebut the presumption under Section 118 of Negotiable Instruments Act. In the appellate stage, the appellant received opinion from the private expert and sought permission to receive as defendant document. Even according to the alleged expert opinion, nothing culled out about the execution of the pronotes. Therefore, he sought for dismissal of MP.No.1 of 2013 as well as the appeal suit.

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Heard, Mr.V.Anand, the learned counsel for the appellant, and Mr.V.P.Sengottuvel, the learned counsel for the respondent.

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The appellant is the defendant and the respondent is the plaintiff. The plaintiff filed suit for recovery of money on the pronotes, which were marked as Ex.A1 to Ex.A4. The original pronotes were marked as Ex.A1 to Ex.A4 while exparte evidence. Since the defendant was set exparte, on the basis of the exparte evidence, the court below decreed the suit by judgment and decree dated 30.06.2009. After period of two years, the defendant filed petition in IA.No.300 of 2011 to set aside the exparte decree and the same was allowed. In the meanwhile bundle was misplaced by the trial court and as per the order of the court, the respondent was permitted to reconstruct the bundle. Therefore, photostat copies of the pronotes were marked once again as Ex.A1 to Ex.A4. The defendant categorically denied the execution of the pronotes and also denied the borrowal of Rs.10,00,000/- on 04.12.2005. Even then, he did not take any steps to disprove the case of the plaintiff by sending for expert opinion.

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The learned counsel for the appellant contended that PW2 who is the attestor of the alleged pronotes deposed that when the defendant borrowed the loan, he was not there. The plaintiff did not lend any money to the defendant. Therefore, the defendant rebutted the evidence of the plaintiff and the presumption under Section 118 of the Negotiable Instruments Act is lifted. Therefore, the burden of proof shifted to the shoulder of the plaintiff to prove his case.

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The learned counsel for the appellant relied upon the judgment in the case of Ayyakannu Gounder Vs. Virudhambal Ammal reported in (2005) 1 MLJ 14, wherein it is held as follows:

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The very fact that all the promissory notes came to be executed within a short span of one week, viz., one promissory note in favour of mother-in-law and two promissory notes in favour of daughters-inlaw throws a doubt with regard to the passing of

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consideration for the said promissory notes and it appears there is truth in the case of the defendant that without receiving any amount, he executed the promissory notes on the basis of which both the suits have been filed.

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It is well settled that the plaintiff cannot pick holes in the defendant's case to establish his case. The definite case has been taken by the defendant right from the beginning and by sending reply on 9.8.1986 to the lawyer notice caused by the assignors in both the suits on 16.4.1986 that under what circumstances the promissory notes came to be executed without receiving consideration by the defendant and as such, the defendant has clearly rebutted the presumption under Section 118 of the Negotiable Instruments Act as held by this Court in 2000 M.L.J. 682

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He also relied upon the judgment in the case of Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal reported in (1999) 3 SCC 35, wherein it is held as follows:

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Section 118 of the Act deals with the presumptions as to negotiable instruments. One of such presumptions is "that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."

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This presumption is based upon a principle and is not a mere technical provision. The principle incorporated being, inferring of a presumption of consideration in the case of a negotiable instrument. A Full Bench of the Rajasthan High Court in Heerachand Vs. Jeevraj and Anr. (AIR 1959 Raj. 1) held that,

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"presumption, therefore, as to consideration is the very ingredient of negotiability and in the case of negotiable instrument, presumption as to consideration has to be made."

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A Full Bench of the Andhra Pradesh High Court is G. Vasu Vs. Syed Yaseen Sifuddin Quadri (AIR 1987 Andhra Pradesh 139) while dealing with the words "until the contrary is proved" held that it was permissible for the Court to look into the preponderance of the probabilities and the entire circumstances of the particular case. After referring to Sections 3,4 and 101 to 104 of the Evidence Act, the Court held

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that while dealing with the absence of consideration, the Court shall have to consider not only whether it believed that consideration did not exist but also whether it considered the non-existence of the consideration so probable that a reasonable man would, under the circumstance of a particular case, could act upon the supposition that the consideration did not exist. Once the defendant showed either by direct evidence or circumstantial evidence or by use of the other presumptions of law or fact that the promissory note was not supported by consideration in the manner stated therein, the evidentiary burden would shift to the plaintiff and the legal burden reviving his legal burden to prove that the promissory note was supported by consideration and at that stage, the presumption of law covered by Section 118 of the Act would disappear, Merely because the plaintiff came forward with a case different from the one mentioned in the promissory note it would not be correct to say that the presumption under Section 118 did not apply at all. Such a presumption applies once the execution of the promissory note is accepted by the defendant. The circumstances that the plaintiff's case was at a variance with the once contained in the promissory note could be relied by the defendant for the purpose of rebutting the presumption of shifting the evidential burden to the plaintiff.

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On perusal of the evidence of PW2, which is extracted as follows:

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Kjy; tprhuizapy; Fwpg;gpl ;Ls ;s 10 yl;r U:ghia thjp mtUila tPl;oy ; itj;JbfhLj;jhh;/ gpujpthjp thjpapd; tPl;ow ;F fld; th';f tUk;nghJ ehd; m';F ,y;iy/ ehd; Kjy; tprhuizapy; Fwpg;gpl ;Ls ;sJnghy; thjp gpujpthjpfSf;F vt;tpj bjhifa[k ; bfhLf;ftpy;iy/thjp gpujpthjpf;F bjhifbfhLf;f trjp ,y;iybad;why ; rhpay;y/ th/rh/M/1 Kjy; 4y; Mtz';fis gpd;dpl ;L jahh; bra;J ehd; jahh; bra;J ,Uf;fpnwd; vd;why; rhpay;y/

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In the first line, PW2 stated that the plaintiff had lent a sum of Rs.10,00,000/- at his house. Subsequent sentences are suggestions put by the defendant that when the defendant visited the house of the plaintiff for borrowal of loan, he was not there and as such, as stated in the proof affidavit, the plaintiff did not lend any money to the defendant. In the next sentence, PW2 categorically denied and therefore the first two suggestions continued with the third suggestion and denied by PW2. Therefore, the judgments relied upon by the learned counsel

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for the appellant are not helpful to this case.

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That apart, the defendant refused to receive the presuit notice dated 08.05.2008, which was marked as Ex.A5. Whereas, the suit summons were served in the same address. Though the defendant took a stand that the plaintiff is stranger to him and he never approached the plaintiff for borrowal of loan, even then he did not take any steps to know about the plaintiff and he did not lodge any complaint in respect of the suit pronotes. He also failed to take any steps to verify the signatures found in the pronotes by expert opinion. Therefore, the court below rightly decreed the suit and it does not warrant any interference by this Court. Accordingly, the appeal suit is liable to be dismissed.

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Insofar as petition in MP.No.1 of 2013 is concerned, it is filed to receive forensic experts report dated 24.01.2013 as an exhibit on the side of the defendant. The experts opinion dated 24.01.2013 annexed along with the said petition revealed that the red enclosed photocopied promissory notes marked as Q1 and Q2 are one and the same. The red enclosed photocopied promissory notes marked as Q3 and Q4 are also one and the same. From the above opinion, nothing to disprove the case of the plaintiff, since Q1 and Q2 were marked as Ex.A1 and Ex.A3. Q3 and Q4 were marked as Ex.A2 and Ex.A4. According to the expert, Ex.A1 and Ex.A3 are in similar handwriting and Ex.A2 and Ex.A4 are in similar handwriting. There is no opinion about the signatures found in the pronotes. On perusal of Ex.A1 to Ex.A4, they are written by the same person and signatures also one and the same in all the pronotes. Therefore, it would not any way help the case of the defendant and as such it is liable to dismissed. Accordingly, the miscellaneous petition in MP.No.1 of 2013 is dismissed.

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